Robinson v Robinson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1756 |
| Date | 01 January 1756 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 177
COURT OF KINGS BENCH
S. C. 17 vol. of Cas. in Dom. Proc. p. 139. 3 Atk. 736. 2 Ves. 225, 231. Qu. Cases in the Time of Lord Talbot, 262. Comyns, 289. Viner, Devise Y. (a) p. 233, 234. 1 Atk. 432. 1 Bos. 217.
S. C. 3 Atk. 736; 2 Ves. sen. 225; 3 Bro. P. C. 180. Referred to, Thong v. Bedford, 1783, 1 Bro. C. C. 315. Distinguished, Hay v. Coventry, 1789, 3 T. R. 87. Discussed, Doe d. Blandford v. Applin, 1790, 4 T. R. 87; Doe d. Phipps v. Mulgrave, 1793, 5 T. R. 323; Seale v. Barter, 1801, 2 Bos. & P. 493; Seaward v. Willock, 1804, 5 East, 206; 1 Smith, 394; Malcolm v. Taylor, 1832, 2 Russ. & M. 445. Distinguished, Beavan v. White, 1844, 7 Ir. Eq. R. 475. Referred to, Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 52; 8 Ir. Eq. R. 746. Applied, East v. Twyford, 1849-53, 9 Hare, 731 n. 733; 4 H. L. C. 517; Key v. Key, 1853, 4 De G. M. & G. 82. Referred to, Head v. Godlee, 1859, Johns. 581; Barrow v. Total, 1862-65, 7 H. & N. 967; 11 H. L. C. 143. Applied, Bell v. Bell, 1864, 15 Ir. Ch. R. 523. Referred to, Bowen v. Lewis, 1884, 9 App. Cas. 898. Applied, Studdert v. Von Steiglitz, 1889, 23 L. R. Ir. 574. Referred to, Saville v. Saville [1896], 1 Ir. R. 263. Not applied, In re Bishop and Richardson's Contract [1899], 1 Ir. R. 77.
IBURB. 88. ROBINSON V. ROBINSON 177 [38] eobinsqn versus robinson. 1756. Devise of all the testator's real estate (except that at E.) and of the perpetuity of hi* presentations to L. H. for his life, and no longer, provided he take the name of the testator, and live at his house at B.; and after his decease, to such son as he shall have lawfully begotten, taking the name of R., and for default of such issue, then to W. E. in fee; is, an estate in tail male in L. H. (he and the heirs of his body taking the name of E.) in order to effectuate the general intent of the testator, notwithstanding the express estate devised to L. H. for life and no longer. [S. C. 17 vol. of Gas. in Dom. Proc. p, 139. 3 Atk. 736. 2 Ves. 225, 231. Qu. Cases in the Time of Lord Talbot, 262. Comyns, 289. Viner, Devise Y. (a) p. 233, 234. 1 Atk. 432. 1 Bos. 217.] [S. C. 3 Atk. 736; 2 Ves. sen. 225 ; 3 Bro. P. C. 180. Referred to, Thong v. Bedford, 1783, 1 Bro. C. C. 315. Distinguished, Hay v. Coventry, 1789, 3 T. R. 87. Discussed, Doe d. Blandford v. Applin, 1790, 4 T. R. 87 ; Doe d. Phipps v. Mulgrave, 1793, 5 T. R. 323; Seale v. Barter, 1801, 2 Bos. & P. 493; Seaward v. Willock, 1804, 5 East, 206; 1 Smith, 394; Malcolm v. Taylor, 1832, 2 Euss. & M. 445. Distinguished, Eeavan v. White, 1844, 7 Ir. Eq. E. 475. Referred to, Montgomery v. Montgomery, 1845, 3 Jo. & Lat. 52 ; 8 Ir. Eq. R. 746. Applied, East v. Twyfmd, 1849-53, 9 Hare, 731 n. 733; 4 H. L. C. 517; Key v. Key, 1853, 4 De G. M. & G. 82. Referred to, Head v. Godlee, 1859, Johns. 581; Barrow v. Total, 1862-65, 7 H. & N. 967 ; 11 H. L. C. 143. Applied, Bell v. Bell, 1864, 15 Ir. Ch. R. 523. Referred to, Bowen v. Lewis, 1884, 9 App. Gas. 898. Applied, Shtddert v. Von Steiglitz, 1889, 23 L. R. Ir. 574. Referred to, Saville v. Saville [1896], 1 Ir. R. 263. Not applied, In re Bishop and Richardson's Contract [1899], 1 Ir. R. 77.] This was a case out of Chancery, on a will.(i)1 On the 27th of July 1723, George Robinson, of Bochym, in the county of Cornwall, Esq. duly made his will, and, after giving his wife one guinea, and his father-in-law a groat, he devised as follows :-" I bequeath all my real estate (excepting my estate in the parish of Endellyon, late Mr. Newman's, and all my presentations in the said county), to Lancelot Hicks, of Plymouth, in the county of Devon, gentleman, for and during the term of his natural life, and no longer; provided (c) that he alter his name, and take that of Robinson, and live at my house of Bochym; and after his decease, to such son as he shall have, lawfully to be begotten, taking the name of Robinson : and for default of such issue,(a) then I bequeath the same to my cousin [the defendant] William Robinson, Rector of Landewedneck, and his heirs for ever."(i)2 " Item. My will and desire is, that he [meaning William R. Rector of Landewedneck] have liberty to present whom he pleases to any vacancy that shall happen in any of my presentations, during his life; and in case any of his children shall take or (6)1 This case has been often recognized, and very strongly in 1 East, 235. 2 Wils. 324; see also 5 Burn. 303, 323. 6 Durn. 513. 8 Durn. 7. 7 Durn. 533. 2 Ves. juu. 708. 4 Durn. 87, ac. 3 East, 550. 5 East, 202, 551. 1 East, 235. 2 Brown, 573. 4 Vez. 304. Doug. 415. 4 Durn. 49. 2 Bos. and Pul. 489. 3 Brown, 414. 1 Brown, 249. 3 Burr. 1633, S. C. also cited in the appellant's second reason in his printed case, Chapman, Lessee of Oliver, and Others v. Brown and Others, Feb. 1767, in Dora. Proc. 2 Wils. 88, 322. See also 3 Bosan. 623. The principle is this, that where there are two intents, one general, and the other particular, if both cannot take effect, the general intent shall prevail. Wilmot, 272. (c) Lucaa 402, 10 MS. 344. Vin. Devise, p. 233. 3 Burr. 1574, 1580, 1633. 1 Vent. 231, noa aliter. See also 1 Vent. 232. 2 Harg. Arg. 371. Qu. Et vide 8 Vin. 184. Ambler 355, 3. And as to general and particular intents, see Park. 31, and 2 Vez. 195. (a) Blaekatorie, when of counsel, said the determination in this case went clearly upon the words default of such issue, which overpowered the words and no longer, in the devise to Lancelot Hicks, 1 Black. 505 ; but qu. 1 as observed, post, 47, if one son only could take, it does not follow of course, that the words, and for default of such issue, are restrained to such one son only. (b)'2 No difference between this and 3 Lev. 442. 178 ROBINSON V. ROBINSON 1 BURR. 39. be designed for holy orders, then it is my deaire that in case of any vacancy in either of my presentations, that bonds of resignation be taken, to such child or children, if the vacancy happen before he or they attain auch orders: and after the same shall be disposed of as aforesaid, then I give the perpetuity of the said presentations, to the said Mr. Lancelot Hicks, in the same manner, and to the same uses as I have given my estate." And after bequeathing some legacies, he gave all the rest of his goods and chattels together with his estate at Endellyon, to his said kinsman William Eobinson, and made him sole executor. This William Eobinson was heir at law to the testator. On the 30th September 1728, the testator died without issue; leaving the said William Eobinson his heir at law. Lancelot Hicks was then living, and took the name of Eobinson and after the testator's death had two sons; [39] George, his eldest; and the plaintiff Edmund (both of them born after the testator's death). Lancelot Hicks entered upon the estate, and lived at the testator's house at Bochyrn: and his eldest son George was called by the name of Eobinson, and died in March 1738, an infant; in the life-time of the aaid Lancelot Hicks, his father, and of the plaintiff, his younger brother. Lancelot Hicks, alias Eobinson, died in July 1745, leaving the plaintiff Edmund Hicks, alias Eabinson, his only surviving son, an infant; who brought his bill in Chancery to have a conveyance. Short state of the case.-The title of the plaintiff appears to be stated thus-That Lancelot Hicks took the estate and complied with the condition; and then had two sons born; the eldest son died an infant, in his life-time. Then Lancelot himself died ; on whose death William Eobinson claims the estate; the first devise " to the son of the body of Lancelot," being already satisfied by the birth and death of George Lancelot's eldest son, as the claimant supposes. Question. " Whether any, and what estate or interest is vested in tha plaintiff Edmund Eobinson, the infant, (Lancelot's second son,) by virtue of the said will'!" This case was thrice argued : 1st, in P. 26 G. 2, on 15bh May 1753, by Mr. Pratt for the plaintiff, and Mr. Yorke for the defendant; again, in P. 29 G. 2, on 14th May 1756, by Mr. Norton for the plaintiff, and Sir Antony Abdy for the defendant; and lastly, in M. 30 G. 2, on 23d November 1756, by Sir Eichard Lloyd for the plaintiff, and Mr. Perrot for the defendant. For the plaintiff (Edmund Eobinson) it was urged that the testator certainly meant to give an estate-tail to Mr. Lancelot Hicks and all his issue : and the intention shall prevail where it may. Ow. 29, Cosen's case. Gro. Jac. 448, King v. Bumball. Doe ex dimiss. Barnard v. Reason, Tr. 28 G. 2, B. E. That the estate to Lancelot Hicka was intended to be an estate tail; but, at least, here is either an estate in fee, or for life, in his son, the plaintiff. As to the condition, " to take the name of Eobinson," the estate must first vest, before the condition can be performed. This is a condition subsequent: as appear by Plowd. 23, Colthirst v. Beiushin: and therefore has nothing to do with the vesting of the estate. Cases in Chancery in Lord Talbot's time, 166, Sir John Robinson v. Oomyns. " No particular...
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